By: R. Thomas Dunn, Esq. and Matthew R. O’Connor, Esq.

As contractors, you may never imagine you could end up someday testifying under oath about the tenth email you sent on a random Tuesday years ago talking about an RFI, soil compaction, or who said what in a meeting with the project owner. Yet, that’s the reality of what happens when a dispute exits the worksite and enters a courtroom.

Recently, the authors tried a multi-day arbitration involving millions in claims. There were twenty witnesses ranging from front-line superintendents to professional experts. Many of the key players had last worked on the job more than 4 years ago. We worked for years to try to resolve the dispute before it got to a hearing, but settlement conferences did not get it done.

If you work in construction long enough, there is a real chance you and your company may face such a similar trial experience.  This article is meant to give you a practical sense of what to expect—and what you can do now to be ready.

How a Project Turns Into a Case
A case starts with a complaint or a demand for arbitration (an arbitration is a private process where contracting parties agree to arbitrate their disputes before an arbitrator that they retain to decide their dispute). One side files a document telling the story from its perspective and setting out legal claims such as breach of contract, delay, extra work, or differing site conditions. The other side responds with an answer, often with counterclaims. 
The next phase is discovery. Documents, including emails, pay applications, change orders and backup, daily reports, RFIs, submittals, schedules and a number of other related items are collected by your attorneys, reviewed, and produced to the other parties. There are also opportunities to ask questions in writing (called interrogatories) and in person (depositions).  After discovery, and settlement discussions, the case proceeds to trial or a final hearing (if arbitration). Your involvement during trial will vary depending upon numerous factors, but it serves everyone to know what to expect to prepare for and participate in a trial.

Project Team Cohesion Matters
Your team’s decisions and communications during the project directly impact strategies at trial. Friction that was not managed at the time becomes cross-examination material. Routine internal or external griping—“our COO doesn’t know anything about what life is like the field,” “Estimating missed the ball big time here,” “no production happens with the night shift,” “the attorneys are wrong – notices just slow things down,” “the owner’s rep is stupid, I just say what he wants to hear” — can become the backbone of the other side’s theory of the case. It may be true that another department could have handled something better or that the architect is annoying, but by the time we’re in a hearing, that opinion and side-commentary does not help. Such infighting makes the company look divided and culpable. Similarly, name-calling or questionable remarks about the owner’s rep or other contracting parties, including even good-intentioned jokes, misfire and can become a leading exhibit in a trial.  Ultimately, a trial is about achieving a reasonable and fair result based upon the parties’ contract and performance. If a party is perceived as “doing the right thing” for the benefit of the project in-line with expectations, that goes a long way to establish good will and credibility with the judge, jury, or arbitrator.  

That does not mean you should avoid documenting. Document facts: what happened, when, who attended the meeting, and what decisions were made. Daily reports and meeting minutes are excellent tools. In those records and in your project communications leave out internal blame, emotional reactions, and unprofessional finger-pointing. If those items need to be aired, do it verbally. The goal is to proactively solve the dispute immediately, not simply to eliminate its paper trail and let it simmer unspoken. A useful rule of thumb is to assume anything you write about a project could be read aloud several years later in front of the jury. Don’t write it if you think a jury of your peers would find it unhelpful, unkind or unprofessional.    

Despite best efforts, emotionally charged or mistakenly prepared emails, texts, and messages exist in every construction dispute. The job of the authors of those communications, in working with the lawyers, is to explain and place those communications in proper context so they are not given more importance than they deserve.  

Witness Prep Takes Time
If you are a witness, you should expect to spend significant time getting ready for trial. Good preparation includes reviewing the key records, walking through the timeline, and talking candidly about difficult issues. You will also discuss cross-examination topics, case themes, and strategies to communicate directly to your audience (judge, jury, arbitrator). This can take multiple meetings, and it can feel repetitive, but it pays off. If prepared, you go into the hearing with a clear mental picture of the project (that happened years ago) and with an understanding of how your testimony fits into the larger case.
In our recent arbitration, we used sworn witness statements filed in advance of the hearing. While not common, this format has some clear benefits for project personnel. You work with counsel to prepare a detailed written account of what you did and observed. You can check dates, drawings, and correspondence carefully. By the time the hearing begins, your core testimony is already in writing, in your own words, and under oath.  At the hearing, initial testimony can focus on clarifying key points, explaining exhibits, and handling updates or developments, rather than trying to reconstruct every fact from scratch while on the witness stand. That reduces pressure and the risk of misstatements driven by nervousness or failings of memory. 

No matter whether your initial testimony is given orally or in writing, be prepared for a substantial time (and energy) commitment. This will disrupt ongoing business operations so advance planning, flexibility, and patience is required to successfully navigate through trial.  
Company Presence in the Courtroom Matters

Someone from your company should be present for as much of the trial as possible. It matters. Having the people who were “in the room where it happened” allows for real time adjustments to unexpected testimony or to address new and unexpected issues. This real-time input is a game-changer. Also, decision-makers notice who shows up. A party that sends a representative communicates through action that it takes the process seriously and that the issue is important to the company. Optics and presence will not win a case by themselves, but they are low hanging fruit that can reap outsized rewards.

Being Ready for Flexible, Hybrid Formats
In our arbitration, most of the witnesses and lawyers were in-person, but we had witnesses testifying live over Zoom, video depositions played back in the hearing room, and some in-house lawyers and company executives appearing remotely for portions of the proceeding. You may end up testifying from your office or a conference room, looking into a camera, instead of sitting in a witness box. You are still under oath, and the testimony is just as serious.  Practically, you need to treat technology as part of your preparation. Test your audio, video, and connection ahead of time. Make sure your environment is quiet and professional—no background interruptions, no screen alerts, no phone buzzing on the table. Know how you will see exhibits, whether through screen-sharing or hard copies provided in advance.

The Roller Coaster: What Hearing Days Actually Feel Like
Once the hearing starts, the experience feels like a roller coaster, both the sheer drops and the slow and steady ascent of an incline. Some days are fast-moving, with rapid cross-examinations, unexpected testimony, and quick evidentiary rulings. Other days are slow and methodical, focused on technical issues, or long sequences of exhibits that must be discussed carefully. 

The days start early and run long with substantial preparation before and after the proceeding itself. It is unrealistic to plan for a productive work day in parallel with a trial day. 
Not every day feels like a “win” and that is to be expected. Some days will feel like the case is going your way. Others will feel like every close call breaks against you. Arbitrators, judges, and juries decide cases based on the full record, not on one good or bad day. Your job is to help build a complete, accurate, and credible account of the project from start to finish.

Construction Meets Legal: “Best Practices”
A trial is never anyone’s favorite part of a project, but it happens. Communicate as if your emails and messages could one day be trial exhibits. Work through internal or external disagreements without turning your inbox into a running blame file. Take witness preparation seriously and give it the time it requires. If you are the company owner or manager, create the available blocks of time for those under your supervision so that they can be just as prepared as you. Try your best to have a company representative in the hearing room whenever possible. Treat hybrid and remote formats with the same seriousness as an in-person courtroom. Accept that hearings feel like a series of ups and downs and focus on the overall story rather than any single moment. Recognize that a trial is simultaneously a major investment and an enormous risk of the company and that it is almost always in the company’s best interest to try to avoid a long, protracted trial process.  Despite best efforts to resolve disputes, trials are unavoidable sometimes and these best practices will help prepare you and your company for your next day in court.